Mary Stelter v. Wisconsin Physicians Service ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-3689
MARY LOU STELTER,
Plaintiff-Appellant,
v.
WISCONSIN PHYSICIANS SERVICE
INSURANCE CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17-cv-00463-jdp — James D. Peterson, Chief Judge.
ARGUED SEPTEMBER 13, 2019 — DECIDED FEBRUARY 20, 2020
Before BAUER, ROVNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. This appeal is brought by Mary Lou
Stelter against her former employer, Wisconsin Physicians
Service Insurance Corporation (“WPS”), for discrimination
and retaliation in violation of the Americans with Disabilities
Act of 1990 (“ADA”). Alleging she was disabled under the
2 No. 18-3689
ADA with back pain that was aggravated by an injury at work,
Stelter contends WPS discriminated and retaliated against
her, failed to accommodate her disability, and ultimately
terminated her based on pretext. The record shows Stelter was
terminated for a pattern of job absenteeism and deficiency. The
district court granted summary judgment in favor of WPS. We
affirm.
I. BACKGROUND
WPS employed Stelter as a sales support assistant in 2002
and promoted her to agency sales representative in 2007. She
was tasked with supporting agency managers in their efforts
to sell WPS insurance products. Beginning in 2010 Wendy
Harings, an agency manager, expressed concern in Stelter’s
performance review regarding personal appointments made
during work hours. In 2013, Harings again commented in
Stelter’s performance review about scheduling appointments
during work hours and Stelter’s need for better familiarity with
large group insurance products.
In February of 2014, Stelter injured her back while at work.
Following the incident, Stelter filed an injury report and WPS
approved her request for time off. On April 17, Stelter’s doctor
cleared her to return with no restrictions. In June of 2014,
Harings conducted Stelter’s performance review giving an
overall rating of improvement required and placing Stelter on
a performance improvement plan. To get Stelter better ac-
quainted with selling large group insurance, Harings had
Stelter visit another WPS’s office located in Wausau which
was roughly a two-hour drive from the location where Stelter
worked.
No. 18-3689 3
In September of 2014, Harings met with Stelter weekly to
discuss tasks and training needs. Harings’s notes of their
weekly meetings expressed her frustration that Stelter failed
to request additional training and continued leaving work for
appointments without giving adequate notice. Harings
recommended Stelter be terminated. On December 10, 2014,
WPS terminated Stelter.
II. DISCUSSION
We review a summary judgment de novo. Kopplin v. Wis.
Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019). This court
examines the record in the light most favorable to the non-
movant and construing all reasonable inferences from the
evidence in her favor. O'Leary v. Accretive Health, Inc., 657 F.3d
625, 630 (7th Cir. 2011). Summary judgment is proper “where
there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Under the ADA, employers are prohibited from discriminating
“against a qualified individual on the basis of disability.” 42
U.S.C. § 12112(a). To succeed on an ADA claim, an employee
must show three elements: (1) she is disabled; (2) she is
otherwise qualified to perform the essential functions of the job
with or without reasonable accommodation; and (3) the
adverse job action was caused by her disability. Roberts v. City
of Chicago, 817 F.3d 561, 565 (7th Cir. 2016).
The district court considered the second and third elements.
As for the second element, the district court found Stelter did
not show she was qualified to perform the essential functions
of her job. If an individual is not qualified for her job, for
reasons unrelated to her disability, “the ADA does not shelter
4 No. 18-3689
disabled individuals from adverse employment actions.”
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 862 (7th Cir.
2005).
In an email, Harings recommended Stelter’s termination
because Stelter failed to provide notice of her absenteeism,
lacked understanding of large group insurance products, and
failed to follow directions. Stelter argued Harings’s reasons for
recommending termination are pretextual. Under a pretext
analysis, the focus is whether the employer honestly believed
the reason it has given for termination. Hnin v. TOA (USA),
LLC, 751 F.3d 499, 506 (7th Cir. 2014). To establish pretext,
Stelter needed to show through inconsistencies or contradic-
tions by Harings that the reason for termination was not the
reason proffered, but instead discriminatory. Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 793 (7th Cir. 2007). The
reasons Harings gave for terminating Stelter, including a
pattern of absenteeism and deficiency with large group
insurance products, were mentioned in Stelter’s performance
reviews before her injury at work occurred. Therefore, no
reasonable jury could conclude that Stelter was terminated on
account of a disability. The incidents Stelter provided are more
consistent with Harings’s continued concerns of Stelter’s
absenteeism and work deficiency rather than discriminatory
animus. “The ADA does not protect persons who have erratic,
unexplained absences, even when those absences are a result
of a disability. The fact is that in most cases, attendance … is a
basic requirement of most jobs.” Waggoner v. Olin Corp., 169
F.3d 481, 484 (7th Cir. 1999).
No. 18-3689 5
As for the third element, Stelter’s termination was an
adverse employment action. However, Stelter is unable to
show her disability was the “but for” cause of her termination,
as required under the third element. A.H. by Holzmueller v. Ill.
High Sch. Ass’n, 881 F.3d 587, 593 (7th Cir. 2018). Again, the
termination was a direct result of her absenteeism and defi-
ciency with large group insurance products.
Stelter alleges WPS did not accommodate her back injury.
When an employee notifies an employer of a disability, the
ADA requires an interactive process between the employee
and employer to determine an appropriate workplace accom-
modation as necessary. Spurling v. C&M Fine Pack, Inc., 739
F.3d 1055, 1061 (7th Cir. 2014). Stelter fails to show an accom-
modation was requested with regards to a sit-to-stand work-
station, flexibility with medical appointments, or driving long
distances. “A plaintiff typically must request an accommodation
for [her] disability to claim that [s]he was improperly denied an
accommodation under the ADA.” Preddie v. Bartholomew
Consol. Sch. Corp., 799 F.3d 806, 813 (7th Cir. 2015). We find the
district court adequately granted summary judgment on both
the second and third element of the ADA claim.
III. CONCLUSION
For the foregoing reasons, we affirm the district court's
decision to grant summary judgment in favor of WPS.